JOSE RODRIGUEZ, PETITIONER V. UNITED STATES OF AMERICA
No. 86-5987
In the Supreme Court of the United States
October Term, 1986
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Seventh Circuit
Brief for the United States in Opposition
OPINIONS BELOW
The opinion of the court of appeals is reported at 803 F.2d 318.
An earlier opinion of the court of appeals is reported at 751 F.2d
875. The opinion of the district court is reported at 583 F. Supp.
86. /1/
JURISDICTION
The judgment of the court of appeals was entered on October 9,
1986. The petition for a writ of certiorari was filed on December 8,
1986. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether a federal district court properly authorized the video
surveillance of premises rented by members of a terrorist group as a
location at which to construct bombs and to plan clandestine
operations.
2. Whether the federal seditious conspiracy statute, 18 U.S.C.
2384, contravenes the Treason Clause of the Constitution, Art 1,
Section 3 cl. 1, by establishing an offense amounting to treason but
lacking the constitutional safeguards necessary to prove that offense.
3. Whether the trial judge properly took judicial notice of the
fact that the Commonwealth of Puerto Rico is subject to the authority
of the United States.
4. Whether the trial court's instructions concerning the elements
of seditious conspiracy were adequate.
STATEMENT
Following a jury trial in the United States District Court for the
Northern District of Illinois, petitioner and three co-defendants,
Alejandrina Torres, Edwin Cortez, and Alberto Rodriguez, were
convicted of seditious conspiracy, in violation of 18 U.S.C. 2384.
/2/ Petitioner was sentenced to a five-year term of imprisonment,
which the court suspended, and placed on five years' probation (slip
op. 3). /3/ The court of appeals affirmed.
1. As set forth in the opinions of the court of appeals (slip op.
2; 751 F.2d at 876-877) and the district court (583 F. Supp. at
88-94), the pertinent facts are that, beginning in 1975, federal and
state investigators conducted an investigation of the FALN (Fuerzas
Armadas do Liberacion National Puertorriquena), an organization
seeking independence for Puerto Rico by violent means, including the
bombing of buildings, incendiary attacks, armed takeovers, and
robberies. The bombs, which have killed several people, injured many
others, and caused millions of dollars in property damages, are
assembled and stored at "safe houses" rented by FALN members under
false names.
Investigators arrested several FALN members in a Chicago suburb in
April 1980, one of whom agreed to assist in the investigation. The
agents followed co-defendant Cortes, whom the informant identified as
an FALN member, to a Chicago apartment at 736 West Buena Street which
has been rented under a fictitious name and which the organization
used as a safe house. Thereafter, investigators conducted visual
surveillance of the apartment and observed Cortes and Torres enter it
(583 F. Supp. at 92).
In January 1983 the government sought, pursuant to Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
2510-2520, an order authorizing the interception fo wire and oral
communications within the apartment. It also requested authorization
to install television cameras in every room the the apartment,
explaining that it had reason to believe that FALN members using safe
houses conducted the assembly of bombs in silence to avoid being
overheard by monitoring devices (751 F.2d at 877). The Chief Judge
for the Northern District of Illinois granted the requests, issuing a
warrant authorizing both audio and video surveillance. His order
directed that the surveillance was to "be conducted in such a way as
to minimize the interception" and was to terminate upon attainment of
the authorized objective. It also required that progress reports be
made to the court every five days, placed a 30-day deadline on both
audio and video surveillance, and specified the number of
surreptitious entries the FBI was authorized to make to install,
service, and remove the surveillance devices (751 F.2d at 884).
Thereafter, four applications were made to renew the order authorizing
surveillance at the Buena Street address. Attached affidavits
detailed conversations of Torres and Cortes concerning efforts to
force the release of a confederate from prison, described how they
were actually engaged in the assembly of bombs, and stated that,
during a surreptitious entry, explosives were observed in the
apartment (id. at 877; 583 F. Supp. at 93).
In April 1983 the investigators sought authorization to install
audio and video surveillance devices in another apartment, located at
1135 Lunt Avenue in Chicago, which had been leased under a false name
and which Torres and Cortes also used in connection with their FALN
activities. The Chief Judge issued an order authorizing both audio
and video surveillance subject to the same conditions as those which
appeared in the order authorizing surveillance of the Buena Street
apartment (583 F.2d at 93; at C.A. App. 276). /4/ The order was
renewed twice thereafter. On April 17, 1983, petitioner visited the
Lunt Avenue address and was observed wearing gloves and heard speaking
with co-defendant Alberto Rodriguez. The conversation involved
various FALN activities including breaking incarcerated FALN members
out of jail, acquisition of false identification cards and code names,
avoiding surveillance by law enforcement officers, and sharing funds
with other FALN groups throughout the country. Slip op. 2. On July
29, 1983, government agents arrested petitioner and the co-defendants
for conspiring to bomb armed forces training centers in the Chicago
area.
2. Prior to trial, petitioner and the co-defendants moved to
suppress the evidence derived from the surveillance of the two
apartments. The district court granted the motion insofar as it
concerned the video surveillance, holding that the judge who issued
the order lacked authority under Title III or any other basis to
authorize video surveillance (583 F. Supp. at 104-105).
The court of appeals reversed (751 F. 2d at 875-886) and this Court
denied a petition for a writ of certiorari (470 U.S. 1087 (1985)).
The court below held that both Fed. R. Crim. P. 41 and the inherent
power of a court of general jurisdiction accord federal district
courts the authority to authorize video surveillance in appropriate
circumstances (751 F.2d at 877-879). Addressing the defendants' claim
that the warrants were not particularized enough as to the scope of
the interceptions permitted, it held that, although Title III did not
address video surveillance, a warrant for video surveillance that
complies with Title III's requirements of particularity also satisfies
the Fourth Amendment's requirement of particularity (id. at 884). It
then noted, as the video surveillance authorizations were issued in
response to a government request for Title III surveillance, they
complied with all of the requirements of Title III enacted to
implement the constitutional requirements of particularity (ibid.).
/5/
During the ensuing trial of petitioner and his three co-defendants,
the government's evidence showed that petitioner's intended role in
the bombing conspiracy was to drive the co-conspirators to the
locations that were to be bombed. At trial the government introduced
the video tape which showed petitioner at the Lunt safe house wearing
gloves and speaking with Alberto Rodriguez concerning FALN activities
(slip op. 5). The district court also took judicial notice at trial
of the fact that the United States exercises authority over Puerto
Rico and refused to permit petitioner to introduce evidence to the
effect that, under international law, such authority was unlawful. It
also rejected the contention that, because the FALN was an
organization engaged in political activity protected by the First
Amendment, the defendants were entitled, in addition to standard
conspiracy instructions, to an instruction to the effect that, in
order to return convictions, the jury must find that each defendant
specifically intended to accomplish the aims of the FALN by force.
The court of appeals affirmed (slip op. 1-7). It rejected
petitioner's claims that the seditious conspiracy statute was an
unconstitutional truncation of the constitutional offense of treason,
that the district court improperly took judicial notice of the status
of Puerto Rico, and that the district court erred by failing to give
the conspiracy instructions requested by the defense. /6/
ARGUMENT
1. a. Petitioner initially contends (Pet. 4-17) that neither
inherent judicial authority nor any federal statute or rule of
procedure authorized the district court to issue a warrant permitting
law enforcement officers to conduct video surveillance of the Lunt
Avenue apartment. As the decision of the court below is correct and
does not conflict with that of any other court of appeals, further
review is unwarranted.
In the first place, although the jurisdiction of the federal courts
is defined by statute, as the court below observed (751 F.2d at
878-879), this Court and the courts of appeals have long held that the
authority to issue warrants is a procedural incident of that
jurisdiction established by the common law. As the Court explained in
Adams v. New York, 192 U.S. 585, 598 (1904), a case that predated any
general statutory authorization to federal courts to issue search
warrants, "(t)he right to issue search warrants to discover * * * the
means of committing crimes, is too long established to require
discussion." See Boyd v. United States, 116 U.S. 616, 623 (1886)
(search and seizure of stolen goods authorized by the common law);
United States v. Williams, 617 F.2d 1063, 1099 (5th Cir. 1980) (en
banc (concurring opinion)) (Federal Rules of Criminal Procedure
constitute no limitation on inherent power of federal courts to issue
search warrants); Application of the United States in re Pen
Register, 538 F.2d 956, 959 (2d Cir. 1976), rev'd on other grounds,
434 U.S. 159 (1977) (federal court possesses inherent authority to
authorize search and seizure of non-tangibles); United States v. Yuck
Kee, 281 F. 228, 231 (D. Minn. 1922) (search warrants authorized by
common law); United States v. Maresca, 266 F. 713, 321 (S.D.N.Y.
1920) (same). /7/ And, on other occasions, this Court has assumed
that the federal courts possess inherent power to issue search
warrants, even absent any enabling legislation. See, e.g., Osborn v.
United States, 385 U.S. 323, 329-331 (1966); Weeks v. United States,
232 U.S. 383, 393 (1914); Ex Parte Jackson, 96 U.S. (6 Otto) 727, 733
(1878). /8/
Even if it were assumed, however, that the federal courts lack the
inherent power to issue search warrants, including those authorizing
video surveillance, Congre-s has plainly granted them such authority
by the adoption of Fed. R. Crim, P. 41 and 57. Rule 41(b)(1) provides
that a federal judge or magistrate may issue a warrant to search for
and seize "property that constitutes evidence of the commission of a
criminal offense." Rule 57(b) provided at the time the warrant in this
case was issued that "(i)f no procedure is specifically prescribed by
rule, the court may proceed in any lawful manner not inconsistent with
these rules or with any applicable statute." Fed. R. Crim. P. 57(b)
(1968). /9/
In United States v. New York Telephone Co., 434 U.S. 159 (1977),
this court held that these rules permitted a federal court to issue an
order authorizing the installation of pen registers designed to
ascertain the use being made of a telephone suspected by being
employed in a criminal venture. It stated (id. at 169-170) (footnotes
omitted):
Although Rule 41(h) defines property "to include documents,
books, papers and any other tangible objects," it does not
restrict or purport to exhaustively enumerate all the items
which may be seized pursuant to Rule 41. Indeed, we recognized
in Katz v. United States, 389 U.S. 347 (1967), which held that
telephone conversations were protected by the Fourth Amendment,
that Rule 41 is not limited to tangible items but is
sufficiently flexible to include within its scope electronic
intrusions authorized upon a finding of probable cause. 389
U.S. at 354-356 and n.16.
* * * *
Our conclusion that Rule 41 authorizes the use of pen
registers under appropriate circumstances is supported by Fed.
R. Crim. P. 57(b) * * *. Although we need not and do not decide
whether Rule 57(b) by itself would authorize the issuance of pen
register orders, it reinforces our conclusion that Rule 41 is
sufficiently broad to include seizures of intangible items. * *
*
As the Court below concluded (751 F.2d at 877-878), if, under the
reasoning of New York Telephone Co., Rules 41(b) and 57 are broad
enough to permit not only the issuance of warrants authorizing the
installation of pen registers but electronic surveillance of
conversations as well, there is no reason why they should not also be
thought sufficiently flexible to authorize issuance of warrants for
video surveillance under appropriate circumstances. /10/
Furthermore, the only other court of appeals to consider the issue,
the Second Circuit in United States v. Biasucci, 786 F.2d 504, cert.
denied, No. 85-2106 (Oct. 6, 1986), joined the court below in holding
that Rule 41 permits district judges to authorize video surveillance
of private premises in appropriate circumstances. Accordingly, review
by this Court is not warranted.
b. Nor is there any merit to petitioner's argument (Pet. 18-20)
that Congress deprived the federal courts of any authority they may
otherwise have possessed to authorize video surveillance in domestic
cases by enacting the Foreign Intelligence Surveillance Act of 1978
(FISA), 50 U.S.C. 1801-1811. The Second Circuit in Biasucci, like the
court below, correctly rejected this argument.
"'The Foreign Intelligence Surveillance Act of 1977' was * * *
introduced to provide a statutory procedure for the authorization of
applications for a court order approving the use of electronic
surveillance to obtain foreign intelligence information." S. Rep.
95-604 Part I, 95th Cong. 1st Sess. 3 (1978). FISA defined
"electronic surveillance" broadly enough to encompass video
surveillance. /11/ Additionally, FISA amended Title III by providing
that the 'procedures in (Title III) and the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by which
electronic surveillance, as defined in (FISA), and the interceptions
of domestic wire and oral communications may be conducted." 18 U.S.C.
2411(2)(f).
Relying on Section 2511(2)(f), petitioner maintains (Pet. 18-19)
that video surveillance may be used only in accordance with the
provision of FISA, and that since FISA applies to the use of
electronic surveillance to obtain information from suspected foreign
agents and does not apply to electronic surveillance of domestic
criminal suspects, Section 2511(2)(f) prohibits video surveillance in
domestic criminal cases. However, as the court below explained (751
F.2d at 881), all Section 2511(2)(f) means "is that the Foreign
Intelligence Surveillance Act is intended to be exclusive in its
domain and Title III in its. The powers that (FISA) gives to the
government to keep tabs on agents of foreign countries are not to be
used for purely domestic investigations, and conversely the
limitations that Title III places on wiretapping and bugging are not
to be used to hobble the government's activities against foreign
agents. To read (FISA) as (petitioner does) would give a statute
designed to regularize the government's broad powers to deal with the
special menace posed by agents of foreign powers the side effect of
curtailing the government's powers in domestic law enforcement."
Furthermore, the Senate Report described Section 2511(2)(f) as
strictly a "technical and conforming" amendment (S. Rep. 604, 95th
Cong., 2d Sess. 3, 63-64 (1978)). Like the court below, the Second
Circuit concluded in Biasucci that "nothing in Title III or the FISA
indicates that Congress intended to prohibit video surveillance in
domestic criminal investigations. Thus, all that can be said is that
Congress has not yet enacted any legislation explicitly authorizing
domestic electronic video surveillance." 786 F.2d at 508-509 (footnote
omitted). /12/
c. Petitioner also argues (Pet. 20-29) that, even if the district
court possessed authority to issue warrants authorizing video
surveillance, its order failed to fulfill the Fourth Amendment's
requirement of particularity because it authorized the surveillance of
every person entering the premises, and did not prohibit the use of
video surveillance until after it had been established that audio
surveillance would be insufficient to reveal that illegal activity was
occurring.
The particularity requirement of the Fourth Amendment serves to
insure that the executing officer's discretion is sufficiently
circumscribed that it does not extend beyond the scope of the issuing
magistrate's probable cause determination. See, e.g., Marron v.
United States, 275 U.S. 192, 196 (1927); United States v. Gomez-Soto,
723 F.2d 649, 952-653 (9th Cir.), cert. denied, 466 U.S. 977 (1984).
A warrant that permits the search of unnamed persons at a particular
location does not violate the requirement of particularity in this
respect as long as the information supplied the magistrate supports
the conclusion that it is probable that anyone in the described place
when the warrant is executed is involved in criminal activity. See
e.g., Ybarra v. Illinois, 444 U.S. 85, 92 n.4 (1979) (distinguishing
situation where warrant gave officers no authority to search a tavern
customer from a warrant authorizing search of unnamed persons that is
supported by probable cause to believe that persons in the place at
the time of the search will be committing unlawful acts); 2 W. La
Fave, Search and Seizure, Section 4.5 at 972 (1978) (collecting
cases).
In this case, averments contained in the affidavits supporting the
Lunt Street surveillance warrant application explained in detail that
FALN safe houses are used exclusively for unlawful purposes including
the manufacture of bombs and incendiary devices, the planning of
terrorist activities, and the storage of equipment relating to them
(C.A. App. 128). They also established reason to believe that the
address had been rented by the co-defendants for such purposes (id. at
245, 252-254). The judge who subsequently issued the warrant
authorizing video surveillance of the Lunt Street apartment could,
therefore, reasonably conclude that anyone entering the premises would
be engaged in clandestine terrorist activities. Accordingly, under
the circumstances, it was perfectly proper for him to authorize the
video monitoring of the activities of unidentified persons found there
(id. at 272-273). /13/
Nor is there any substance to petitioner's argument (Pet. 25,
28-29) that the Fourth Amendment permits no greater invasion of
privacy than is necessary under the circumstances and that, therefore,
the court should have authorized video surveillance only if audio
surveillance proved fruitless. As the Court recently explained in
Colorado v. Bertine, No. 85-889 (Jan. 14, 1987), where there is lawful
authority to conduct a search and its purpose and limits have been
precisely defined, it is unreasonable to require law enforcement
officers to pursue less intrusive means at the risk of compromising
efficient completion of the task at hand. Slip op. 7, quoting
Illinois v. Lafayette, 462 U.S. 640, 648 (1983). /14/ In any event,
however, the affidavits supporting the warrant applications made it
plain that, due to measures taken by FALN members to frustrate
interception of their conversations e.g., C.A. App. 139-140) and the
nature of the unlawful activities conducted in safe houses, frequently
by one person acting alone (id. at 136), audio surveillance was
insufficient to obtain evidence concerning the terrorist activities
being carried on at such locations. In view of the fact that the FALN
safe houses were employed only for unlawful activities (id. at 136),
it was perfectly reasonable for the issuing judge not to require
investigators to attempt audio surveillance of the Lunt Street address
before resorting to video surveillance.
2. Petitioner also claims (Pet. 30-41) that the seditious
conspiracy statute under which he was convicted is unconstitutional.
He maintains that it punishes the same misconduct as that prohibited
by the Treason Clause of the Constitution but fails to afford the
procedural safeguards contained in that clause, particularly the
requirement that the offense be proven by the testimony of two
witnesses to the same overt act. /15/ However, because seditious
conspiracy and treason are separate crimes protecting separate
governmental interests, this argument was properly rejected by the
court below.
It is "settled that an offense must incorporate all the elements of
treason in order for the two witness rule to apply." United States v.
Drummond, 354 F.2d 132, 152 (2d Cir. 1965); see Ex Parte Quirin, 317
U.S. 1, 38 (1942); United States v. Rosenberg, 195 F.2d 583, 610-611
(2d Cir.), cert. denied, 344 U.S. 838 (1952). As Chief Justice
Marshall explained in Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 127
(1807), "(i)t is * * * consonant to the principles of our
constitution, that the crime of treason should not be extended by
construction to doubtful cases; and that crimes not clearly within
the constitutional definition should receive such punishment as the
legislature in its wisdom may provide." This Court and the courts of
appeals have, therefore, repeatedly rejected claims that statutes
relating to national security punish treasonable conduct without
providing the accused the benefit of the two witness rule. Ex Parte
Quirin, 317 U.S. at 38 (entry into American territory by belligerent
wearing civilian clothing); Frohwerk v. United States, 249 U.S. 204,
210 (1919) (conspiracy to obstruct military recruiting); Drummond,
354 F.2d at 152 (conspiracy to deliver national defense documents);
Rosenberg, 195 F.2d at 611 (same); Wimmer v. United States, 264 F.
11, 12-13 (6th Cir. 1920) (words and actions favoring a hostile
power); Equi v. United States, 261 F. 53, 55 (9th Cir. 1919)
(statements calculated to incite disloyalty and mutiny).
As the court below observed, the offenses of treason and seditious
conspiracy are, likewise, elementally distinct. Treason, which can
only be committed by a person owing allegence to the United States,
consists of "levying war against them or adher(ing) to their enemies,
giving them aid and comfort * * *." 18 U.S.C. 2381; see U.S. Const.
Art, III Section 3, cl. 1. The offense of seditious conspiracy,
however, consists, inter alia, of "conspir(ing) to overthrow, put
down, or to destroy by force the Government of the United States, or
to levy war against them, or to oppose by force the authority thereof,
or by force to prevent, hinder or delay the execution of any law of
the United States." 18 U.S.C. 2384. /16/ Most significantly, in
contrast with the offense of treason, Section 2384 makes punishable
purely conspiratorial conduct. See Ex Parte Bollman, 8 U.S. at 126
(conspiring to subvert by force the government of our country is not
treason; conspiring to levy war and actually to levy war are distinct
offenses); see also United States v. Mitchell, 2 U.S. (2 Dall.) 348,
349 (C.C. Pa. 1795). Moreover, unlike treason, Section 2384 does not
require that the defendant owe allegence to the United States nor does
it contemplate the presence of an enemy or a state of war. Finally,
unlike treason, the offense of seditious conspiracy does not extend
beyond the United States' jurisdictional boundaries. Consequently,
"(b)ecause Section 2384 proscribes a different crime and protects a
different governmental interest, * * * (it) does not conflict with the
treason clause" (slip op. 4). /17/
3. Petitioner also claims (Pet. 42-55) that the trial court
improperly took judicial notice of the fact that Puerto Rico is
subject to the authority of the United States, an element of the
offense of seditious conspiracy, and that it improperly prevented him
from presenting evidence that the assertion of such authority violates
principles of international law. These arguments were also properly
rejected by the court below.
As that court reasoned, it is well-established that a trial judge
can take judicial notice of federal law. See e.g., United States v.
Schmitt, 748 F.2d 249, 255 (5th Cir. 1984), cert. denied, 471 U.S.
1104 (1985), quoting Lamar v. Micou, 114 U.S. 218, 223 (1885); Oneida
Indian Nation v. State of New York, 691 F.2d 1070, 1086 (2d Cir.
1982). As the result of the Treaty of Paris, 31 Stat. 1754 (1899),
sovereignty over Puerto Rico was ceded by Spain to the United States,
and, as the result of subsequent legislation enacted by Congress,
"(t)he statutory laws of the United States not locally inapplicable, *
* * shall have the same force and effect in Puerto Rico as in the
United States." 48 U.S.C. 734; see e.g., Downes v. Bidwell, 182 U.S.
244, 287 (1901) ("the Island of Puerto Rico is a territory appurtenant
and belinging to the United States"); United States v. Quinones, 758
F.2d 40, 43 (1st Cir. 1985). /18/ The trial judge was, therefore,
correct in instructing the jury that the United States' authority over
Puerto Rico was derived from statutes enacted by Congress and the
Constitution (Tr. 2069, 2466).
It is, moreover, inconsequential whether, in the opinion of some
commentators, such authority over Puerto Rico is exercised in
violation of principles of international law. As explained in The
Over The Top, 5 F.2d 838, 842 (D. Conn. 1925), "(i)nternational
practice is law only in so far as (the courts) adopt it, and like all
common or statute law it bends to the will of the Congress. * * *
There is one ground only upon which a federal court may refuse to
enforce an act of Congress and that is when the act is held to be
unconstitutional." See also United States v. Allen, 760 F.2d 447, 454,
(2d Cir. 1985) ("'in enactihg statutes, Congress is not bound by
international law. * * * If it chooses to do so, it may legislate (in
a manner contrary to the limits posed by internation law.)'"); United
States v. Howard-Arias, 679 F.2d 363, 371 (4th Cir.), cert. denied,
459 U.S. 874 (1982) ("'international law must give way when it
conflicts with or is superseded by a federal statute'"). The trial
judge, therefore, properly excluded such evidence as irrelevant.
4. Finally, petitioner claims (Pet. 56-61) that he was, in
substance, charged with participation in a conspiracy to obtain
independence for Puerto Rico through membership in the FALN and that,
because the charge implicated associational freedoms, he was entitled
to an instruction that, in order to return a conviction, the jury must
specifically find that he intended to accomplish the aims of the
organization by force. This claim was also properly rejected by the
court below.
The authorities upon which petitioner principally relies to support
the claim that he was entitled to such an instruction involved
prosecutions under the Smith Act, 18 U.S.C. 2385, which prohibits,
inter alia, membership in an organization advocating the overthrow of
the government by force or violence. Addressing the scope of the
membership clause of the Act, this Court has held that the government
must present "clear proff that a defendant 'specifically intend(s) to
accomplish (the aims of the organization) by resort to violence.'"
Scales v. United States, 367 U.S. 203, 229 (1961), quoting Noto v.
United States, 367 U.S. 290, 299 (1961). Petitioner, however, was not
charged merely with membership in an organization advocating unlawful
activity as one of its objectives. Instead, he was charged with
conspiring "to oppose by force the authority of the government of the
United States * * * by means of force, terror and violence, including
the construction and planting of explosive and incendiary devices at
banks, stores, office buildings and government buildings" (C.A. App.
278). And the evidence established that he knowingly and
intentionally became a member of the conspiracy (slip op. 7).
Consequently, there was no basis for giving the special instruction
required in Smith Act prosecutions based upon mere associational
conduct.
CONCLUSION
The petition for a writ of certiorari should be denied.
CHARLES FRIED
Solicitor General
WILLIAM F. WELD.
Assistant Attorney General
JOHN F. DE PUE
Attorney
FEBRUARY 1987
/1/ Petitioner has attached the slip opinion of the court of
appeals' more recent opinion, its earlier published opinion, and the
district court's published opinion in his appendix, without
renumbering the pages. We cite to the pages of the opinions as
reproduced in the appendix.
/2/ The district court dismissed a count charging petitioner with
conspiracy to interfere with interstate commerce, in violation of 18
U.S.C. 1951, at the conclusion of the government's case.
/3/ Torres, Cortez, and Alberto Rodriguez were also convicted of
other offenses, including unlawful possession of destructive devices
and a silencer, in violation of 26 U.S.C. 5861(d) and (i); conspiracy
to make destructive devices, in violation of 26 U.S.C. 5861(f) and 18
U.S.C. 371; and interstate transportation of a stolen motor vehicle,
in violation of 18 U.S.C. 2312. Cortes and Alberto Rodriguez were
convicted also of conspiracy to rob an instrumentality in interstate
commerce, in violation of 18 U.S.C. 1951. Petitioner's three
co-defendants each were sentenced to 35 years' imprisonment and did
not appeal their convictions.
/4/ "C.A. App." refers to the appendix to the government's brief in
the court of appeals in No. 84-1077.
/5/ Judge Cudahy issued a concurring opinion (751 F.2d at 886-895).
In his view, Title III and the Foreign Intelligence Surveillance Act
of 1978, Pub. L. 95-511, 92 Stat. 1783, when construed in tandem,
reflect the intent of Congress that video surveillance should be
subject to the requirements of Title III. He also noted that, by
including the request for video surveillance in its request for audio
surveillance under Title III, the government essentially complied with
those requirements (751 F.2d at 894-895).
/6/ The court of appeals refused to reopen the issue it had
previously resolved concerning the video surveillance, and also
rejected the claim that petitioner was improperly targeted for
prosecution.
/7/ Petitioner is incorrect in his claim (Pet. 12) that in United
States v. New York Telephone Co., 434 U.S. 159 (1977), this Court
rejected the holding of the court of appeals that federal courts
possess inherent authority to issue search warrants. To the contrary,
after expressing agreement with the court of appeals that the district
court had the power to authorize the installation of a pen register,
it observed that "(t)he Courts of Appeals that have considered the
question have agreed that pen register orders are authorized by Fed.
Rule Crim. P. 41 or by an inherent power closely akin to it to issue
search warrants under circumstances conforming to the Fourth
Amendment." 434 U.S. at 168 n.14 (emphasis added). It was unnecessary
for it to further address the scope of the federal courts' inherent
authority because it concluded that Fed. R. Crim. P. 41 was a
sufficient basis to permit them to issue pen register warrants.
Nor is petitioner correct in his argument (Pet. 13) that the New
York Telephone Co. Court's citation to the All Writs Act, 28 U.S.C.
1651(a), "contradicts the notion" that district courts have inherent
authority to issue search warrants. The Courts in that case invoked
the All Writs Act as authority to compel the telephone company to
provide technical assistance in the installation of the pen registers,
not as authority for issuance of the warrant authorizing their use.
434 U.S. at 171-172.
/8/ Petitioner's reliance (Pet. 7) upon the opinion of Lord Camden
in Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765),
quoted in Boyd v. United States, 116 U.S. at 627-629, for the
proposition that, shortly before the adoption of the Fourth Amendment,
statutory authority was required in England to issue search warrants,
is unfounded. That case involved the question whether the Secretary
of State, a non-judicial officer, possessed the authority to issue a
general warrant to investigate seditious libel. The decision
expressly distinguished between the authority to issue such warrants
and the authority to issue warrants to search for stolen goods. Lord
Camden noted that the latter "crept into the law by imperceptible
practice" and was surrounded by procedural safeguards which did not
attend the issuance of general warrants, such as averments under oath
that a theft had occurred and that the goods were to be found at the
place to be searched. See Boyd v. United States, 116 U.S. at 628.
/9/ Fed. R. Crim. P. 57 was revised in 1985 to read in pertinent
part: "In all cases not provided for by rule, the district judges and
magistrates may regulate their practice in any manner not inconsistent
with these rules or those of the district in which they act."
/10/ Petitioner maintains (Pet. 12, 15-16) that New York Telephone
Co. provides no support for the proposition that Rule 41 permits
issuance of a warrant authorizing video surveillance because that case
involved only the use of a pen register, which he characterizes as a
de minimis intrusion. The Court, however, did not predicate its
holding that Rule 41 permitted isssuance of pen register
authorizations upon the limited nature of the intrusion involved but
rather upon the proposition that the rule is "sufficiently flexible to
include within its scope electronic intrusions authorized upon a
finding of probable cause," including electronic surveillance of
telephone conversations. As the court below reasoned (751 F.2d at
882-883), the intrusiveness of the surveillance technique employed is
relevant to the nature of the safeguards that a court must impose in
striking the balance between public safety and personal privacy upon
issuance of a warrant, not to its authority to issue the warrant in
the first place.
Nor is petitioner correct in his submission (Pet. 12, 14) that the
decision in New York Telephone Co. was based on congressional
observations that pen registers are a legitimate law enforcement tool
and that, therefore, it has no bearing on this case. The New York
Telephone Co. Court noted that the legislative history of Title III
confirmed that there was no congressional intent to subject pen
registers to its requirements. 434 U.S. at 167. However, that
legislative history played no part in its holding that Fed. R. Crim.
P. 41 authorizes federal courts to issue warrants permitting pen
registers as well as more intrusive forms of electronic surveillance.
/11/ FISA defines "electronic device" to include "an electronic,
mechanical, or other surveillance device * * * for monitoring to
acquire information other than from a wire or radio communication
under circumstances in which a person has a reasonable expectation of
privacy and a warrant would be required for law enforcement purposes."
50 U.S.C. 1801(f)(4).
/12/ In his concurring opinion, Judge Cudahy did not, as petitioner
maintains (Pet. 17-18), conclude that video surveillance is prohibited
by FISA and Title III. Expressly rejecting that argument (751 F.2d at
891-893) he reasoned that, by virtue of the enactment of FISA in 1978,
the requirements of Title III were expanded to include video as well
as audio surveillance (id. at 893-894). And, as he observed, by
making its request for video surveillance part of its application for
audio surveillance under Title III, the government essentially
complied with those requirements (id. at 894-495).
/13/ This case, therefore, beasrs no resemblance to Ybarra v.
Illinois, upon which petitioner relies (Pet. 27). In that case, as
the Court expressly observed (444 U.S. at 92 n.4), there was no reason
to believe that persons entering the premises, a public tavern, were
engaged in unlawful conduct.
/14/ Berger v. United States, 388 U.S. 41 (1967), upon which
petitioner relies (Pet. 25), is not to the contrary. That case,
explaining the Court's earlier decision in Osborn v. United States,
385 U.S. 323, merely noted that in Osborn a warrant issued by two
federal judges which authorized electronic surveillance permitted no
greater invasion of privacy than was necessary under the circumstances
as it particularized the type of conversation sought, prohibited the
search of unauthorized areas, and required termination of the
intrusion once its objective was obtained (388 U.S. at 56-57). It
never suggested that, in addition, as a matter of Fourth Amendment,
jurisprudence, such a warrant could only issue following a
determination that other measures were fruitless.
/15/ Article III, Section 3, Clause 1 of the Constitution provides:
Treason against the United States shall consist only in levying
war aginst them, or in adhering to their enemies, giving them
aid and comfort. No person shall be convicted of treason unless
on the testimony of two witnesses to the same overt act, or on
confession in open court.
/16/ Petitioner was charged with conspiring to "oppose by force the
authority of the government of the "United States." See C.A. App. 278.
/17/ Petitioner also argues (Pet. 35, 38) that the seditious
conspiracy statute is unconstitutional because it punishes words and
thoughts. The seditious conspiracy statute, however, prohibits
agreements to overthrow the government, levy war against it, or
forceably oppose its authority; it does not prohibit mere political
expression. See United States v. Lebron, 222 F.2d 531, 536 (2d Cir.
1955). Therefore, it does not implicate First Amendment values. See
Dennis v. United States, 341 U.S. 494, 501-511 (1951).
/18/ In 1952, as the result of the approval by Congress of the
Puerto Rican constitution, Puerto Rico ceased being a territory of the
United States and achieved the status of a Commonwealth. See 48
U.S.C. 731b-731e. The creation of Commonwealth status granted Puerto
Rico authority over its own local affairs. See United States v.
Quinones, 758 F.2d at 43.